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Robin Hood by J. Walker McSpadden

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``mi tnda,'' I do not love. Such differentiations in tone our own
people make also, and the mutation of meaning is very close. But
who observes it at all?

Important as are the changes in the meanings of words, they fall
short beside the changes of meaning of the conception given in
the mode of exposition. Hence, there are still greater mistakes,
because a single error is neither easily noticeable nor traceable.
J. S. Mill says, justly, that the ancient scientists missed a great deal
because they were guided by linguistic classification. It scarcely
occurred to them that what they assigned abstract names to really
consisted of several phenomena. Nevertheless, the mistake has
been inherited, and people who nowadays name abstract things,
conceive, according to their intelligence, now this and now that
phenomenon by means of it. Then they wonder at the other fellow's
not understanding them. The situation being so, the criminalist
is coercively required, whenever anything abstract is named, first
of all to determine accurately what the interlocutor means by his
word. In these cases we make the curious discovery that such
determination is most necessary among people who have studied the
object profoundly, for a technical language arises with just the persons
who have dealt especially with any one subject.

As a rule it must be maintained that time, even a little time,
makes an essential difference in the conception of any object.
Mittermaier, and indeed Bentham, have shown what an influence the
interval between observation and announcement exercises on the
form of exposition. The witness who is immediately examined may,


perhaps, say the same thing that he would say several weeks after--
but his presentation is different, he uses different words, he understands
by the different words different concepts, and so his testimony
becomes altered.

A similar effect may be brought about by the conditions under
which the evidence is given. Every one of us knows what surprising
differences occur between the statements of the witness
made in the silent office of the examining justice and his secretary,
and what he says in the open trial before the jury. There is frequently
an inclination to attack angrily the witnesses who make such
divergent statements. Yet more accurate observation would show
that the testimony is essentially the same as the former but that the
manner of giving it is different, and hence the apparently different
story. The difference between the members of the audience has a
powerful influence. It is generally true that reproductive construction
is intensified by the sight of a larger number of attentive hearers,
but this is not without exception. In the words ``attentive hearers''
there is the notion that the speaker is speaking interestingly and
well, for otherwise his hearers would not be attentive, and if anything
is well done and is known to be well done, the number of the listeners
is exciting, inasmuch as each listener is reckoned as a stimulating
admirer. This is invariably the case. If anybody is doing a piece
of work under observation he will feel pleasant when he knows that
he is doing it well, but he will feel disturbed and troubled if he is
certain of his lack of skill. So we may grant that a large number of
listeners increases reproductive constructivity, but only when the
speaker is certain of his subject and of the favor of his auditors.
Of the latter, strained attention is not always evidence. When a
scholar is speaking of some subject chosen by himself, and his audience
listens to him attentively, he has chosen his subject fortunately,
and speaks well; the attention acts as a spur, he speaks still better,
etc. But this changes when, in the course of a great trial which
excites general interest, the witness for the government appears.
Strained attention will also be the rule, but it does not apply to
him, it applies to the subject. He has not chosen his topic, and no
recognition for it is due him--it is indifferent to him whether he
speaks ill or well. The interest belongs only to the subject, and the
speaker himself receives, perhaps, the undivided antipathy, hatred,
disgust, or scorn, of all the listeners. Nevertheless, attention is
intense and strained, and inasmuch as the speaker knows that this
does not pertain to him or his merits, it confuses and depresses him.


It is for this reason that so many criminal trials turn out quite
contrary to expectation. Those who have seen the trial only, and
were not at the prior examination, understand the result still less
when they are told that ``nothing'' has altered since the prior
examination--and yet much has altered; the witnesses, excited or
frightened by the crowd of listeners, have spoken and expressed
themselves otherwise than before until, in this manner, the whole
case has become different.

In a similar fashion, some fact may be shown in another light
by the manner of narration used by a particular witness. Take, as
example, some energetically influential quality like humor. It is
self-evident that joke, witticism, comedy, are excluded from the
court-room, but if somebody has actually introduced real, genuine
humor by way of the dry form of his testimony, without having
crossed in a single word the permissible limit, he may, not rarely,
narrate a very serious story so as to reduce its dangerous aspect to a
minimum. Frequently the testimony of some funny witness makes
the rounds of all the newspapers for the pleasure of their readers.
Everybody knows how a really humorous person may so narrate
experiences, doubtful situations of his student days, unpleasant
traveling experiences, difficult positions in quarrels, etc., that every
listener must laugh. At the same time, the events told of were
troublesome, difficult, even quite dangerous. The narrator does not
in the least lie, but he manages to give his story the twist that even
the victim of the situation is glad to laugh at.[1] As Krpelin says,
``The task of humor is to rob a large portion of human misfortune
of its wounding power. It does so by presenting to us, with our
fellows as samples, the comedy of the innumerable stupidities of
human life.''

[1] E. Regnault: La Langage par Gestes. La Nature XXVI, 315.

Now suppose that a really humorous witness tells a story which
involves very considerable consequences, but which he does not
really end with tragic conclusions. Suppose the subject to be a
great brawl, some really crass deception, some story of an attack on
honor, etc. The attitude toward the event is altered with one
turn, even though it would seem to have been generated progressively
by ten preceding witnesses and the new view of the matter makes
itself valid at least mildly in the delivery of the sentence. Then
whoever has not heard the whole story understands the results least
of all.

In the same way we see really harmless events turned into tragedies


by the testimony of a black-visioned, melancholy witness, without
his having used, in this case or any other, a single untrue word. In
like manner the bitterness of a witness who considers his personal
experiences to be generally true, may color and determine the attitude
of some, not at all serious, event. Nor is this exaggeration. Every
man of experience will, if he is only honest enough, confirm the fact,
and grant that he himself was among those whose attitude has been
so altered; I avoid the expression--``duped.''

It is necessary here, also, to repeat that the movements of the
hands and other gestures of the witnesses while making their statements
will help much to keep the correct balance. Movements lie
much less frequently than words.[1]

[1] Paragraph omitted.

Another means of discovering whether a witness is not seduced
by his attitude and his own qualities is the careful observation of
the impression his narrative makes on himself. Stricker has controlled
the conditions of speech and has observed that so long as he
continued to bring clearly described complexes into a causal relation,
_*satisfactory to him_, he could excite his auditors; as soon as he spoke
of a relation which _*did not_ satisfy him the attitude of the audience
altered. We must invert this observation; we are the auditors
of the witness and must observe whether his own causal connections
satisfy him. So long as this is the case, we believe him. When it
fails to be so he is either lying, or he himself knows that he is not
expressing himself as he ought to make us correctly understand what
he is talking about.

Section 61. (b) Dialect Forms.

What every criminal lawyer must unconditionally know is the
dialect of those people he has most to deal with. This is so important
that I should hold it conscienceless to engage in the profession of
criminology without knowing the dialects. Nobody with experience
would dispute my assertion that nothing is the cause of so great
and so serious misunderstandings, of even inversions of justice, as
ignorance of dialects, ignorance of the manner of expression of human
groups. Wrongs so caused can never be rectified because their
primary falsehood starts in the protocol, where no denial, no dispute
and redefinition can change them.

It is no great difficulty to learn dialects, if only one is not seduced


by comic pride and foolish ignorance of his own advantage into
believing that popular speech is something low or common. Dialect
has as many rights as literary language, is as living and interesting
an organism as the most developed form of expression. Once the
interest in dialect is awakened, all that is required is the learning of
a number of meanings. Otherwise, there are no difficulties, for the
form of speech of the real peasant (and this is true all over the
world), is always the simplest, the most natural, and the briefest.
Tricks, difficult construction, circumlocutions are unknown to the
peasant, and if he is only left to himself he makes everything definite,
clear, and easily intelligible.

There are many more difficulties in the forms of expression of
the uncultivated city man, who has snapped up a number of
uncomprehended phrases and tries to make use of them because of
their suppositious beauty, regardless of their fitness. Unpleasant
as it is to hear such a screwed and twisted series of phrases, without
beginning and without end, it is equally difficult to get a dear notion
of what the man wanted to say, and especially whether the phrases
used were really brought out with some purpose or simply for the
sake of showing off, because they sound ``educated.''

In this direction nothing is more significant than the use of the
imperfect in countries where its use is not customary and where as a
rule only the perfect is used; not ``I was going,'' but ``I have gone''
(went). In part the reading of newspapers, but partly also the
unfortunate habit of our school teachers, compel children to the use
of the imperfect, which has not an iota more justification than the
perfect, and which people make use of under certain circumstances,
i. e., when they are talking to educated people, and then only before
they have reached a certain age.

I confess that I regularly mistrust a witness who makes use of
an imperfect or some other form not habitual to him. I presuppose
that he is a weak-minded person who has allowed himself to be persuaded;
I believe that he is not altogether reliable because he permits
untrue forms to express his meaning, and I fear that he neglects
the content for the sake of the form. The simple person who quietly
and without shame makes use of his natural dialect, supplies no
ground for mistrust.

There are a few traits of usage which must always be watched.
First of all, all dialects are in certain directions poorer than the
literary language. E. g., they make use of fewer colors. The blue
grape, the red wine, may be indicated by the word black, the light


wine by the word white. Literary language has adopted the last
term from dialect. Nobody says water-colored or yellow wine,
although nobody has ever yet seen white wine. Similarly, no peasant
says a ``brown dog,'' a ``brown-yellow cow''--these colors are
always denoted by the word red. This is important in the description
of clothes. There is, however, no contradiction between this trait
and the fact that the dialect may be rich in terms denoting objects
that may be very useful, e. g. the handle of a tool may be called
handle, grasp, heft, stick, clasp, etc.

When foreign words are used it is necessary to observe in what
tendency, and what meaning their adoption embodies.[1]

[1] Paragraph omitted.

The great difficulty of getting uneducated people to give their
testimony in direct discourse is remarkable. You might ask for
the words of the speaker ten times and you always hear, ``He told
me, I should enter,'' you never hear ``He told me, `Go in.' '' This
is to be explained by the fact, already mentioned, that people bear
in mind only the meaning of what they have heard. When the question
of the actual words is raised, the sole way to conquer this disagreeable
tendency is to develop dialogue and to say to the witness,
``Now you are A and I am B; how did it happen?'' But even this
device may fail, and when you finally do compel direct quotation,
you can not be certain of its reliability, for it was too extraordinary
for the witness to quote directly, and the extraordinary and unhabitual
is always unsafe.

What especially wants consideration in the real peasant is his
silence. I do not know whether the reasons for the silence of the
countrymen all the world over have ever been sought, but a gossiping
peasant is rare to find. This trait is unfortunately exhibited in the
latter's failure to defend himself when we make use of energetic
investigation. It is said that not to defend yourself is to show
courage, and this may, indeed, be a kind of nobility, a disgust at the
accusation, or certainty of innocence, but frequently it is mere
incapacity to speak, and inexperienced judges may regard it as an
expression of cunning or conviction. It is wise therefore, in this
connection, not to be in too great a hurry, and to seek to understand
clearly the nature of the silent person. If we become convinced
that the latter is by nature uncommunicative, we must not
wonder that he does not speak, even when words appear to be quite
necessary.

In certain cases uneducated people must be studied from the same


point of view as children. Geiger[1] speaks of a child who knew only
one boy, and all the other boys were Otho to him because this first
boy was called Otho. So the recruit at the Rhine believed that in
his country the Rhine was called Donau. The child and the uneducated
person can not subordinate things under higher concepts.
Every painted square might be a bon-bon, and every painted circle
a plate. New things receive the names of old ones. And frequently
the skill of the criminalists consists in deriving important material
from apparently worthless statements, by way of discovering the
proper significance of simple, inartistic, but in most cases excellently
definitive images. It is of course self-evident that one must absolutely
refrain from trickery.

[1] Der Ursprung der Sprache. Stuttgart 1869.

Section 62. (c) Incorrect Forms of Expression.

If it is true that by the earnest and repeated study of the meanings
of words we are likely to find them in the end containing much deeper
sense and content than at the beginning, we are compelled to wonder
that people are able to understand each other at all. For if words
do not have that meaning which is obvious in their essential denotation,
every one who uses them supplies according to his inclination,
and status the ``deeper and richer sense.'' As a matter of fact
many more words are used pictorially than we are inclined to think.
Choose at random, and you find surprisingly numerous words with
exaggerated denotations. If I say, ``I posit the case, I press through,
I jump over, the proposition, etc.,'' these phrases are all pictures,
for I have posited nothing, I have pressed through no obstacle, and
have jumped over no object. My words, therefore, have not stood
for anything real, but for an image, and it is impossible to determine
the remoteness of the latter from the former, or the variety of direction
and extent this remoteness may receive from each individual.
Wherever images are made use of, therefore, we must, if we are to
know what is meant, first establish how and where the use occurred.
How frequently we hear, e. g., of a ``four-cornered'' table instead of
a square table; a ``very average'' man, instead of a man who is
far below the average. In many cases this false expression is half-
consciously made for the purpose of beautifying a request or making
it appear more modest. The smoker says: ``May I have some light,''
although you know that it is perfectly indifferent whether much or


little light is taken from the cigar. ``May I have just a little piece
of roast,'' is said in order to make the request that the other fellow
should pass the heavy platter seem more modest. And again:
``Please give me a little water,'' does not modify the fact that the
other fellow must pass the whole water flask, and that it is indifferent
to him whether afterwards you take much or little water. So,
frequently, we speak of borrowing or lending, without in the remotest
thinking of returning. The student says to his comrade, ``Lend
me a pen, some paper, or some ink,'' but he has not at all any intention
of giving them back. Similar things are to be discovered
in accused or witnesses who think they have not behaved properly,
and who then want to exhibit their misconduct in the most favorable
light. These beautifications frequently go so far and may be made
so skilfully that the correct situation may not be observed for a
long time. Habitual usage offers, in this case also, the best examples.
For years uncountable it has been called a cruel job to earn your
living honestly and to satisfy the absolute needs of many people
by quickly and painlessly slaughtering cattle. But, when somebody,
just for the sake of killing time, because of ennui, shoots and martyrs
harmless animals, or merely so wounds them that if they are not
retrieved they must die terrible deaths, we call it noble sport. I
should like to see a demonstration of the difference between killing
an ox and shooting a stag. The latter does not require even superior
skill, for it is much more difficult to kill an ox swiftly and painlessly
than to shoot a stag badly, and even the most accurate shot requires
less training than the correct slaughter of an ox. Moreover, it
requires much more courage to finish a wild ox than to destroy a
tame and kindly pheasant. But usage, once and for all, has assumed
this essential distinction between men, and frequently this distinction
is effective in criminal law, without our really seeing how or
why. The situation is similar in the difference between cheating
in a horse trade and cheating about other commodities. It occurs
in the distinction between two duellists fighting according to rule
and two peasant lads brawling with the handles of their picks according
to agreement. It recurs again in the violation of the law by
somebody ``nobly inspired with champagne,'' as against its violation
by some ``mere'' drunkard. But usage has a favoring, excusing
intent for the first series, and an accusing, rejecting intent for the
latter series. The different points of view from which various
events are seen are the consequence of the varieties of the usage
which first distinguished the view-points from one another.

There is, moreover, a certain dishonesty in speaking and in listening
where the speaker knows that the hearer is hearing a different
matter, and the hearer knows that the speaker is speaking a different
matter. As Steinthal[1] has said, ``While the speaker speaks about
things that he does not believe, and the reality of which he takes no
stock in, his auditor, at the same time, knows right well what the
former has said; he understands correctly and does not blame the
speaker for having expressed himself altogether unintelligibly.''
This occurs very frequently in daily routine, without causing much
difficulty in human intercourse, but it ought, for this reason, to
occur inversely in our conversation with witnesses and accused. I
know that the manner of speaking just described is frequently used
when a witness wants to clothe some definite suspicion without
expressing it explicitly. In such cases, e. g., the examiner as well
as the witness believes that X is the criminal. For some reason,
perhaps because X is a close relation of the witness or of ``the man
higher up,'' neither of them, judge nor witness, wishes to utter the
truth openly, and so they feel round the subject for an interminable
time. If now, both think the same thing, there results at most only a
loss of time, but no other misfortune. When, however, each thinks
of a different object, e. g., each thinks of another criminal, but
each believes mistakenly that he agrees with the other, their separating
without having made explicit what they think, may lead
to harmful misunderstandings. If the examiner then believes that
the witness agrees with him and proceeds upon this only apparently
certain basis, the case may become very bad. The results are the
same when a confession is discussed with a suspect, i. e., when the
judge thinks that the suspect would like to confess, but only suggests
confession, while the latter has never even thought of it. The one
thing alone our work permits of is open and clear speaking; any
confused form of expression is evil.

[1] Cf. Zeitschrift fur Vlkeranthropologie. Vol. XIX. 1889. ``Wie denkt das
yolk ber die Sprache?''

Nevertheless, confusions often occur involuntarily, and as they
can not be avoided they must be understood. Thus, it is characteristic
to understand something unknown in terms of some
known example, i. e., the Romans who first saw an elephant, called
it ``bos lucani.'' Similarly ``wood-dog'' = wolf; ``sea-cat'' = monkey,
etc. These are forms of common usage, but every individual is
accustomed to make such identifications whenever he meets with
any strange object. He speaks, therefore, to some degree in images,


and if his auditor is not aware of the fact he can not understand him.
His speaking so may be discovered by seeking out clearly whether
and what things were new and foreign to the speaker. When this is
learned it may be assumed that he will express himself in images
when considering the unfamiliar object. Then it will not be difficult
to discover the nature and source of the images.

Similar difficulties arise with the usage of foreign terms. It is
of course familiar that their incorrect use is not confined to the
uneducated. I have in mind particularly the weakening of the
meaning in our own language. The foreign word, according to
Volkmar, gets its significance by robbing the homonymous native
word of its definiteness and freshness, and is therefore sought out
by all persons who are unwilling to call things by their right names.
The ``_triste_ position'' is far from being so sad as the ``sad'' position.
I should like to know how a great many people could speak, if they
were not permitted to say _malheur_, _mchant_, _perfide_, etc.--words
by means of which they reduce the values of the terms at least a
degree in intensity of meaning. The reason for the use of these words
is not always the unwillingness of the speaker to make use of the
right term, but really because it is necessary to indicate various
degrees of intensity for the same thing without making use of attributes
or other extensions of the term. Thus the foreign word is
in some degree introduced as a technical expression. The direction
in which the native word weakens, however, taken as that is intended
by the individual who uses its substitute, is in no sense universally
fixated. The matter is entirely one of individual usage and must
be examined afresh in each particular case.

The striving for abbreviated forms of expression,--extraordinary
enough in our gossipy times,--manifests itself in still another
direction. On my table, e. g., there is an old family journal, ``From
Cliff to Sea.'' What should the title mean? Obviously the spatial
distribution of the subject of its contents and its subscribers--i. e.,
``round about the whole earth,'' or ``Concerning all lands and all
peoples.'' But such titles would be too long; hence, they are synthesized
into, ``From Cliff to Sea,'' without the consideration that cliffs
often stand right at the edge of the sea, so that the distance between
them may be only the thickness of a hair:--cliff and sea are not
local opposites.

Or: my son enters and tells me a story about an ``old semester.''
By ``old semester'' he means an old student who has spent many
terms, at least more than are required or necessary, at the university.


As this explanation is too long, the whole complex is contracted into
``old semester,'' which is comfortable, but unintelligible to all
people not associated with the university. These abbreviations are
much more numerous than, as a rule, they are supposed to be, and
must always be explained if errors are to be avoided. Nor are silent
and monosyllabic persons responsible for them; gossipy individuals
seek, by the use of them, to exhibit a certain power of speech. Nor
is it indifferent to expression when people in an apparently nowise
comfortable fashion give approximate circumlocutive figures, e. g.,
_half-a-dozen_, four syllables, instead of the monosyllable _six_; or ``the
bell in the dome at St. Stephen's has as many nicks as the year
has days,'' etc. It must be assumed that these circumlocutive
expressions are chosen, either because of the desire to make an
assertion general, or because of the desire for some mnemonic aid.
It is necessary to be cautious with such statements, either because,
as made, they only ``round out'' the figures or because the reliability
of the aid to memory must first be tested. Finally, it is well-known
that foreign words are often changed into senseless words of a similar
sound. When such unintelligible words are heard, very loud repeated
restatement of the word will help in finding the original.

TITLE B. DIFFERENTIATING CONDITIONS OF GIVING TESTIMONY.

Topic I. GENERAL DIFFERENCES.

(a) Woman.

Section 63. (I) _General Considerations_.[1]

[1] For the abnormal see--Ncke: Verbrechen und Wahnsinn beim Weibe
Leipzig 1894.

One of the most difficult tasks of the criminalist who is engaged
in psychological investigation is the judgment of woman. Woman
is not only somatically and psychically rather different from man;
man never is able wholly and completely to put himself in her place.
In judging a male the criminalist is dealing with his like, made of
the same elements as he, even though age, conditions of life, education,
and morality are as different as possible. When the criminalist
is to judge a gray-beard whose years far outnumber his own, he
still sees before him something that he may himself become, built
as he, but only in a more advanced stage. When he is studying a
boy, he knows what he himself felt and thought as boy. For we


never completely forget attitudes and judgments, no matter how
much time has elapsed--we no longer grasp them en masse, but
we do not easily fail to recall how they were constructed. Even
when the criminalist is dealing with a girl before puberty he is not
without some point of approach for his judgment, since boys and
girls are at that period not so essentially different as to prevent the
drawing of analogous inferences by the comparison of his own childhood
with that of the girl.

But to the nature of woman, we men totally lack avenues of approach.
We can find no parallel between women and ourselves, and
the greatest mistakes in criminal law were made where the conclusions
would have been correct if the woman had been a man.[1] We have
always estimated the deeds and statements of women by the same
standards as those of men, and we have always been wrong. That
woman is different from man is testified to by the anatomist, the
physician, the historian, the theologian, the philosopher; every
layman sees it for himself. Woman is different in appearance, in
manner of observation, of judgment, of sensation, of desire, of
efficacy,--but we lawyers punish the crimes of woman as we do
those of man, and we count her testimony as we do that of man. The
present age is trying to set aside the differences in sex and to level
them, but it forgets that the law of causation is valid here also.
Woman and man have different bodies, hence they must have different
minds. But even when we understand this, we proceed wrongly
in the valuation of woman. We can not attain proper knowledge of
her because we men were never women, and women can never tell
us the truth because they were never men.

[1] H. Marion: Psychologie de la Femme. Paris 1900.

Just as a man is unable to discover whether he and his neighbor
call the same color red, so, eternally, will the source of the indubitably
existent differences in the psychic life of male and female be undiscovered.
But if we can not learn to understand the essence of the
problem of the eternal feminine, we may at least study its manifestations
and hope to find as much clearness as the difficulty of the subject
will permit. An essential, I might say, unscientific experience seems
to come to our aid here. In this matter, we trust the real researches,
the determinations of scholars, much less than the conviction of the
people, which is expressed in maxims, legal differences, usage, and
proverbs. We instinctively feel that the popular conception presents
the experience of many hundreds of years, experiences of both men
and women. So that we may assume that the mistakes of the


observations of individuals have corrected each other as far as has
been possible, and yield a kind of average result. Now, even if
averages are almost always wrong, either because they appear too
high or too low, the mistake is not more than half a mistake. If
in a series of numbers the lowest was 4, the highest 12, and the
average 8, and if I take the latter for the individual problem, I
can at most have been mistaken about four, never about eight,
as would have been the case if I had taken 4 or 12 for each other.
The attitude of the people gives us an average and we may at least
assume that it would not have maintained itself, either as common
law or as proverb, if centuries had not shown that the mistake
involved was not a very great one.

In any event, the popular method was comparatively simple.
No delicate distinctions were developed. A general norm of valuation
was applied to woman and the result showed that woman is simply
a less worthy creature. This conception we find very early in the
history of the most civilized peoples, as well as among contemporary
backward nations and tribes. If, now, we generally assume that the
culture of a people and the position of its women have the same
measure, it follows only that increasing education revealed that the
simple assumption of the inferiority of woman was not correct, that
the essential difference in psyche between man and woman could
not be determined, and that even today, the old conception half
unconsciously exercises an influence on our valuation of woman,
when in any respect we are required to judge her. Hence, we are
in no wise interested in the degree of subordination of woman among
savage and half-savage peoples, but, on the other hand, it is not
indifferent for us to know what the situation was among peoples and
times who have influenced our own culture. Let us review the
situation hastily.

A number of classical instances which are brought together by
Fink[1] and Smith,[2] show how little the classic Greek thought of
woman, and W. Becker[3] estimates as most important the fact that
the Greek always gave precedence to children and said,
.'' The Greek naturalists, Hippocrates and Aristotle,
modestly held woman to be half human, and even the poet Homer
is not free from this point of view (cf. the advice of Agamemnon
to Odysseus). Moreover, he speaks mostly concerning the scan-


dalmongering and lying of women, while later, Euripides directly
reduces the status of women to the minimum (cf. Iphigenia).

[1] Romantic Love and Personal Beauty. H. Fink. London 1887.

[2] Dictionary of Christian Antiquities.

[3] Bilder altgriechischer Sitte.

The attention of ancient Rome is always directed upon the puzzling,
sphinx-like, unharmonious qualities in woman. Horace gives it
the clearest expression, e. g., ``Desinite in piscem mulier formosa
superne.''

The Orientals have not done any better for us. The Chinese
assert that women have no souls. The Mohammedan believes
that women are denied entrance to paradise, and the Koran (xliii, 17)
defines the woman as a creature which grows up on a soil of finery
and baubles, and is always ready to nag. How well such an opinion
has sustained itself, is shown by the Ottomanic Codex 355, according
to which the testimony of two women is worth as much as the testimony
of one man. But even so, the Koran has a higher opinion of
women than the early church fathers. The problem, ``An mulier
habeas animam,'' was often debated at the councils. One of them,
that of Macon, dealt earnestly with the MS. of Acidalius, ``Mulieres
homines non esse.'' At another, women were forbidden to touch the
Eucharist with bare hands. This attitude is implied by the content
of countless numbers of evil proverbs which deal with the inferior
character of woman, and certainly by the circumstance that so great a
number of women were held to be witches, of whom about 100,000
were burned in Germany alone. The statutes dealt with women only
in so far as their trustworthiness as witnesses could be depreciated.
The Bambergensis (Art. 76), for example, permits the admission of
young persons and women only in special cases, and the quarrels
of the older lawyers concerning the value of feminine testimony is
shown by Mittermaier.[1]

[1] Die Lehre vom Beweise. Darmstadt.

If we discount Tacitus' testimony concerning the high status of
women among the Germanic tribes on the basis that he aimed at
shaming and reforming his countrymen, we have a long series of
assertions, beginning with that of the Norseman Havaml,--which
progressively speaks of women in depreciatory fashion, and calls
them inconstant, deceitful, and stupefying,--to the very modern
maxim which brings together the extreme elevation and extreme
degradation of woman: ``Give the woman wings and she is either
an angel or a beast.'' Terse as this expression is, it ought to imply
the proper point of view--women are either superior or inferior
to us, and may be both at the same time. There are women who are
superior and there are women who are inferior, and further, a single


woman may be superior to us in some qualities and inferior in others,
but she is not like us in any. The statement that woman is as complete
in her own right as man is in his, agrees with the attitude above-
mentioned if we correlate the superiority and inferiority of women
with ``purposefulness.'' We judge a higher or lower organism
from our standpoint of power to know, feel, and do, but
we judge without considering whether these organisms imply
or not the purposes we assume for them. Thus a uniform,
monotonous task which is easy but requires uninterrupted attention
can be better performed by an average, patient, unthinking
individual, than by a genial fiery intellect. The former is much more
to the purpose of this work than the latter, but he does not stand
higher. The case is so with woman. For many of the purposes
assigned to her, she is better constructed. But whether this
construction, from our standpoint of knowing and feeling, is to be
regarded as higher or lower is another question.

Hence, we are only in a sense correct, when calling some feminine
trait which does not coincide with our own a poorer, inferior quality.
We are likely to overlook the fact that this quality taken in itself,
is the right one for the nature and the tasks of woman, whereas we
ought with the modern naturalist assume that every animal has
developed correctly for its own purposes. If this were not the case
with woman she would be the first exception to the laws of natural
evolution. Hence, our task is not to seek out peculiarities and
rarities in woman, but to study her status and function as given her
by nature. Then we shall see that what we would otherwise have
called extraordinary appears as natural necessity. Of course many
of the feminine qualities will not bring us back to the position which
has required them. Then we may or may not be able to infer it
according to the laws of general co-existence, but whether we establish
anything directly or indirectly must be for the time, indifferent;
we do know the fact before us. If we find only the pelvis of a human
skeleton we should be able to infer from its broad form that it belonged
to a woman and should be able to ground this inference on
the business of reproduction which is woman's. But we shall also
be able, although we have only the pelvis before us, to make reliable
statements concerning the position of the bones of the lower extremities
of _*this_ individual. And we shall be able to say just what
the form of the thorax and the curve of the vertebral column were.
This, also, we shall have in our power, more or less, to ground on
the child-bearing function of woman. But we might go still further


and say that this individual, who, according to its pelvic cavity,
was a woman, must have had a comparatively smaller skull, and
although we can not correlate the present mark with the child-
bearing function or any other special characteristic of woman, we may
yet infer it safely, because we know that this smaller skull capacity
stands in regular relation to the broad pelvis, etc. In a like manner
it will be possible to bring together collectively various psychical
differences of woman, to define a number of them as directly necessary,
and to deduce another number from their regular co-existence.
The certainty here will be the same as in the former case, and once
it is attained we shall be able satisfactorily to interpret the conduct,
etc., of woman.

Before turning to feminine psychology I should like briefly to
touch upon the use of the literature in our question and indicate
that the poets' results are not good for us so long as we are trying
to satisfy our particular legal needs. We might, of course, refer to
the poet for information concerning the feminine heart,--woman's
most important property,--but the historically famous knowers
of the woman's heart leave us in the lurch and even lead us into
decided errors. We are not here concerned with the history of
literature, nor with the solution of the ``dear riddle of woman;''
we are dry-soured lawyers who seek to avoid mistakes at the expense
of the honor and liberty of others, and if we do not want to believe
the poets it is only because of many costly mistakes. Once we were
all young and had ideals. What the poets told us we supposed to
be the wisdom of life--nobody else ever offers any--and we wanted
compulsorily to solve the most urgent of human problems with our
poetical views. Illusions, mistakes, and guiltless remorse, were the
consequence of this topsy-turvy work.

Of course I do not mean to drag our poets to court and accuse
them of seducing our youth with false gods--I am convinced that
if the poets were asked they would tell us that their poetry was
intended for all save for physicians and criminalists. But it is
conceivable that they have introduced points of view that do not
imply real life. Poetical forms do not grow up naturally, and then
suddenly come. together in a self-originated idea. The poet creates
the idea first, and in order that this may be so the individual form
must evolve according to sense. The more natural and inevitable
this process becomes the better the poem, but it does not follow that
since we do not doubt it because it seems so natural, it mirrors
the process of life. Not one of us criminalists has ever seen a form


as described in a poem--least of all a woman. Obviously, in our
serious and dry work, we may be able to interpret many an observation
and assertion of the poet as a golden truth, but only when we
have tested its correctness for the daily life. But it must be understood
that I am not saying here, that we ourselves might have been
able to make the observation, or to abstract a truth from the flux
of appearances, or at least to set it in beautiful, terse, and I might
say convincing, form. I merely assert, that we must be permitted
to examine whether what has been beautifully said may be generalized,
and whether we then have found the same, or a similar
thing, in the daily life. Paradoxical as it sounds, we must never
forget that there is a kind of evidentiality in the form of beauty
itself. One of Blopstock's remarkable psalms begins: ``Moons
wander round the earth, earths round suns, the whole host of suns
wander round a greater sun, Our Father, that art thou.'' In this
inexpressibly lofty verse there is essentially, and only in an extremely
intensified fashion, evidence of the existence of God, and if the
convinced atheist should read this verse he would, at least for the
moment, believe in his existence. At the same time, a real development
of evidence is neither presented nor intended. There are
magnificent images, unassailable true propositions: the moon goes
round about the earth, the earth about the sun, the whole system
around a central sun--and now without anything else, the fourth
proposition concerning the identity of the central sun with our
heavenly Father is added as true. And the reader is captivated for
at least a minute! What I have tried here to show by means of a
drastic example occurs many times in poems, and is especially evident
where woman is the subject, so that we may unite in believing
that the poet can not teach us that subject, that he may only lead
us into errors.

To learn about the nature of woman and its difference from that
of man we must drop everything poetical. Most conscientiously
we must drop all cynicism and seek to find illumination only in
serious disciplines. These disciplines may be universal history
and the history of culture, but certainly not memoirs, which
always represent subjective experience and one-sided views.
Anatomy, physiology, anthropology, and serious special literature,
presupposed, may give us an unprejudiced outlook, and then
with much effort we may observe, compare, and renew our
tests of what has been established, sine ire et studio, sine odio et
gratia.

I subjoin a list of sources and of especial literature which also contains
additional references.[1]

[1] E. Reich: Das Leben des Menschens als Individuum. Berlin 1881.

L. von Stern: Die Frau auf dem Gebiete etc. Stuttgart 1876.

A. Corre: La Mre et l'Enfant dans les Races Humaines. Paris 1882.

A. v. Schweiger-Lerchenfeld: Das Frauenleben auf der Erde. Vienna 1881

J. Michelet. La Femme.

Rykre: Das weibliches Verbrechertum. Brussels 1898.

C. Renooz: Psychologie Compare de l'Homme et de la Femme. Biblio. de.
la Nouv. Encyclopaedie. Paris 1898.

Mbius: Der Physiologische Schwachsinn des Weibes.

Section 64. 2. _Difference between Man and Women_

There are many attempts to determine the difference between
the feminine and masculine psyche. Volkmar in his ``Textbook of
Psychology'' has attempted to review these experiments. But the
individual instances show how impossible is clear and definite statement
concerning the matter. Much is too broad, much too narrow;
much is unintelligible, much at least remotely correct only if one
knows the outlook of the discoverer in question, and is inclined to
agree with him. Consider the following series of contrasts.

_Male_ _Female_
Individuality Receptivity (Burdach, Berthold)
Activity Passivity (Daub, Ulrici, Hagemann)
Leadership Imitativeness (Schleiermacher)
Vigor Sensitivity to stimulation (Beneke)
Conscious activity Unconscious activity (Hartmann)
Conscious deduction Unconscious induction (Wundt)
Will Consciousness (Fischer)
Independence Completeness (Krause, Lindemann)
Particularity Generally generic (Volkmann)
Negation Affirmation (Hegel and his school)

None of these contrasts are satisfactory, many are unintelligible.
Burdach's is correct only within limits and Hartmann's is approximately
true if you accept his point of view. I do not believe that
these explanations would help anybody or make it easier for him to
understand woman. Indeed, to many a man they will appear to be
saying merely that the psyche of the male is masculine, that of the
female feminine. The thing is not to be done with epigrams however
spirited. Epigrams merely tend to increase the already great confusion.

Hardly more help toward understanding the subject is to be
derived from certain expressions which deal with a determinate


and also with a determining trait of woman. For example, the
saying, ``On forbidden ground woman is cautious and man keen,''
may, under some circumstances, be of great importance in a criminal
case, particularly when it is necessary to fix the sex of the criminal.
If the crime was cautiously committed a woman may be inferred,
and if swiftly, a man. But that maxim is deficient in two respects.
Man and woman deal in the way described, not only in forbidden
fields, but generally. Again, such characteristics may be said to be
ordinary but in no wise regulative: there are enough cases in which
the woman was much keener than the man and the man much more
cautious than the woman.

The greatest danger of false conceptions lies in the attribution of
an unproved peculiarity to woman, by means of some beautifully
expressed, and hence, apparently true, proverb. Consider the well
known maxim: Man forgives a beautiful woman everything, woman
nothing. Taken in itself the thing is true; we find it in the gossip of
the ball-room, and in the most dreadful of criminal cases. Men are
inclined to reduce the conduct of a beautiful sinner to the mildest
and least offensive terms, while her own sex judge her the more
harshly in the degree of her beauty and the number of its partisans.
Now it might be easy in an attempt to draw the following consequences
from the correctness of this proposition: Men are generally
inclined to forgive in kindness, women are the unforgiving creatures.
This inference would be altogether unjustified, for the maxim only
incidentally has woman for its subject; it might as well read: Woman
forgives a handsome man everything, man nothing. What we have
at work here is the not particularly remarkable fact that envy plays
a great rle in life.

Another difficulty in making use of popular truths in our own
observations, lies in their being expressed in more or less definite
images. If you say, for example, ``Man begs with words, woman
with glances,'' you have a proposition that might be of use in many
criminal cases, inasmuch as things frequently depend on the demonstration
that there was or was not an amour between two people
(murder of a husband, relation of the widow with a suspect).

Now, of course, the judge could not see how they conversed
together, how he spoke stormily and she turned her eyes away.
But suppose that the judge has gotten hold of some letters--then
if he makes use of the maxim, he will observe that the man becomes
more explicit than the woman, who, up to a certain limit, remains
ashamed. So if the man speaks very definitely in his letters, there


is no evidence contradictory to the inference of their relationship,
even though nothing similar is to be found in her letters. The thing
may be expressed in another maxim: What he wants is in the lines;
what she wants between the lines.

The great difficulty of distinguishing between man and woman
is mentioned in ``Levana oder Erziehungslehre,'' by Jean Paul,
who says, ``A woman can not love her child and the four continents
of the world at the same time. A man can.'' But who has ever
seen a man love four continents? ``He loves the concept, she the
appearance, the particular.'' What lawyer understands this? And
this? ``So long as woman loves, she loves continuously, but man
has lucid intervals.'' This fact has been otherwise expressed by
Grabbe, who says: ``For man the world is his heart, for woman her
heart is the world.'' And what are we to learn from this? That the
love of woman is greater and fills her life more? Certainly not. We
only see that man has more to do than woman, and this prevents
him from depending on his impressions, so that he can not allow
himself to be completely captured by even his intense inclinations.
Hence the old proverb: Every new affection makes man more
foolish and woman wiser, meaning that man is held back from his
work and effectiveness by every inclination, while woman, each time,
gathers new experiences in life. Of course, man also gets a few of
these, but he has other and more valuable opportunities of getting
them, while woman, who has not his position in the midst of life,
must gather her experiences where she may.

Hence, it remains best to stick to simple, sober discoveries which
may be described without literary glamour, and which admit of no
exception. Such is the statement by Friedreich[1]: ``Woman is more
excitable, more volatile and movable spiritually, than man; the
mind dominates the latter, the emotions the former. Man thinks
more, woman senses more.'' These ungarnished, clear words, which
offer nothing new, still contain as much as may be said and explained.
We may perhaps supplement them with an expression of Heusinger's,
``Women have much reproductive but little productive imaginative
power. Hence, there are good landscape and portrait painters
among women, but as long as women have painted there has
not been any great woman-painter of history. They make
poems, romances, and sonnets, but not one of them has written
a good tragedy.'' This expression shows that the imaginative
power of woman is really more reproductive than productive,


and it may be so observed in crimes and in the testimony of
witnesses.

[1] J. B. Friedreich: System der gerichtlich. Psychol. Regensburg 1852.

In crimes, this fact will not be easy to observe in the deed itself,
or in the manner of its execution; it will be observable in the nature
of the plan used. To say that the plan indicates productive creation
would not be to call it original. Originality can not be indicated,
without danger of misunderstanding, by means of even a single
example; we have simply to cling to the paradigm of Heusinger, and
to say, that when the plan of a criminal act appears more independent
and more completely worked out, it may be assumed to be
of masculine origin; if it seeks support, however, if it is an imitation
of what has already happened, if it aims to find outside assistance
during its execution, its originator was a woman. This truth goes
so far that in the latter case the woman must be fixed upon as the
intellectual source of the plan, even though the criminal actually
was a man. The converse inference could hardly be held with justice.
If a man has thought out a plan which a woman is to execute, its
fundamental lines are wiped out and the woman permits the productive
aspect of the matter to disappear, or to become so indefinite
that any sure conclusion on the subject is impossible.

Our phenomenon is equally important in statements by witnesses.
In many a case in which we suppose the whole or a
portion of a witness's testimony to be incorrect, intentionally invented,
or involuntarily imagined, we may succeed in extracting
a part of the testimony as independent construction, and thus
determining what might be incorrect in it. If, when this happens,
the witness is a man and his lies show themselves in productive
form, and if the witness is a woman and her lies appear to be reproduced,
it is possible, at least, that we are being told untruths. The
procedure obviously does not in itself contain anything evidential,
but it may at least excite suspicion and thus caution, and that, in
many cases, is enough. I may say of my own work that I have often
gained much advantage from this method. If there were any suspicion
that the testimony of a witness, especially the conception of
some committed crime, was untrue, I recalled Heusinger, and asked
myself ``If the thing is untrue, is it a sonnet or a tragedy?'' If the
answer was ``tragedy'' and the witness a man, or, if the answer was
``sonnet'' and the witness a woman, I concluded that everything was
possibly invented, and grew quite cautious. If I could come to
no conclusion, I was considerably helped by Heusinger's other
proposition, asking myself, ``Flower-pictures or historical subjects?''


And here again I found something to go by, and the need to be
suspicious. I repeat, no evidence is to be attained in this way, but
we frequently win when we are warned beforehand.

(3) _Sexual Peculiarities_.

Section 65. (a) General Considerations.

Even if we know that hunger and love are not the only things
that sustain impulse, we also know the profound influence that love
and all that depends upon it exercise from time immemorial on the
course of events. This being generally true, the question of the
influence of sex on woman is more important than that of its influence
on man, for a large number of profound conditions are at work in
the former which are absent in the latter. Hence, it is in no way
sufficient to consider only the physiological traits of the somatic life
of woman, i. e., menstruation, pregnancy, child-birth, the suckling
period, and finally the climacterium. We must study also the
possibly still more important psychical conditions which spring from
the feminine nature and are developed by the demands of civilization
and custom. We must ask what it means to character when an
individual is required from the moment puberty begins, to conceal
something for a few days every month; what it means when this
secrecy is maintained for a long time during pregnancy, at least
toward children and the younger people. Nor can it be denied that
the custom which demands more self-control in women must exercise
a formative influence on their natures. Our views do not permit the
woman to show without great indirection whom she hates or whom she
likes; nor may she indicate clearly whom she loves, nor must she
appear solicitous. Everything must happen indirectly, secretly,
and approximately, and if this need is inherited for centuries, it
must, as a characteristic, impart a definite expression to the sex.
This expression is of great importance to the criminalist; it is often
enough to recall these circumstances in order to find explanation
for a whole series of phenomena. What differences the modern
point of view and modern tendencies will make remains to be seen.
Let us now consider particular characteristics.

Section 66. (b) Menstruation.

We men, in our own life, have no analogy, not even a remote one,
to this essentially feminine process. In the mental life of woman
it is of greater importance than we are accustomed to suppose. In


most cases in which it may be felt that the fact of menstruation
influences a crime or a statement of facts, it will be necessary to
make use of the court physician, who must report to the judge.
The latter absolutely must understand the fact and influence of
menstruation. Of course he must also have general knowledge of
the whole matter, but he must require the court physician definitely
to tell him when the event began and whether any diseased conditions
were apparent. Then it is the business of the judge to interpret
the physician's report psychologically--and the judge knows
neither more nor less psychology, according to his training, than the
physician. Any text-book on physiology will give the important
facts about menstruation. It is important for us to know that menses
begin, in our climate, from the thirteenth to the fifteenth year, and
end between the forty-fifth and the fiftieth year. The periods are
normally a solar month--from twenty-seven to twenty-eight days,
and the menstruation lasts from three to five days. After its conclusion
the sexual impulse, even in otherwise frigid women, is in
most cases intensified. It is important, moreover, to note the fact
that most women, during their periods, show a not insignificant
alteration of their mental lives, often exhibiting states of mind that
are otherwise foreign to them.

As in many cases it is impossible without other justification to
ask whether menses have begun, it is worth while knowing that
most women menstruate, according to some authorities, during the
first quarter of the moon, and that only a few menstruate during
the new or full moon. The facts are very questionable, but we have
no other cues for determining that menstruation is taking place.
Either the popularly credited signs of it (e. g., a particular appearance,
a significant shining of the eyes, bad odor from the mouth, or susceptibility
to perspiration) are unreliable, or there are such signs
as feeling unwell, tension in the back, fatigue in the bones, etc.,
which are much more simply and better discovered by direct interrogation,
or examination by a physician.

If there is any suspicion that menstruation has influenced testimony
or a crime, and if the other, especially the above-mentioned facts,
are not against it, we are called upon to decide whether we are
considering a mental event, due to the influence of menstruation.
Icard[1] has written the best monograph on this subject.

[1] Icard: La Femme dans la Periode Menstruelle. Paris 1890.

Considering the matter in detail, our attention is first called to
the importance of the beginning of menstruation. Never is a girl


more tender or quiet, never more spiritual and attractive, nor more
inclined to good sense, than in the beginning of puberty, generally
a little before the menstrual periods have begun, or have become
properly ordered. At this time, then, the danger that the young
girl may commit a crime is very small, perhaps smaller then at any
other time. And hence, it is the more to be feared that such a creature
may become the victim of the passions of a rou, or may cause herself
the greatest harm by mistaken conduct. This is the more possible
when the circumstances are such that the child has little to do,
though naturally gifted. Unused spiritual qualities, ennui, waking
sensitivity and charm, make a dangerous mixture, which is expressed
as a form of interest in exciting experiences, in the romantic, or
at least the unusual. Sexual things are perhaps wholly, or partly
not understood, but their excitation is present and the results are
the harmless dreams of extraordinary experiences. The danger is
in these, for from them may arise fantasies, insufficiently justified
principles, and inclination to deceit. Then all the prerequirements
are present which give rise to those well-known cases of unjust
complaints, false testimony about seduction, rape, attempts at rape
and even arson, accusing letters, and slander.[1] Every one of us is
sufficiently familiar with such accusations, every one of us knows
how frequently we can not sufficiently marvel how such and such
an otherwise quiet, honest, and peaceful girl could perform things
so incomprehensible. If an investigation had been made to see
whether the feat did not occur at the time of her first mensis;
if the girl had been watched during her next mensis to determine
whether some fresh significant alteration occurred, the police physician
might possibly have been able to explain the event. I know
many cases of crimes committed by half-grown girls who would
under no circumstances have been accused of them; among them
arson, lese majeste, the writing of numerous anonymous letters, and
a slander by way of complaining of a completely fanciful seduction.
In one of these cases we succeeded in showing that the girl in question
had committed her crime at the time of her first mensis; that she
was otherwise quiet and well conducted, and that she showed at
her next mensis some degree of significant unrest and excitement.
As soon as the menses got their proper adjustment not one of the
earlier phenomena could be observed, and the child exhibited no
further inclination to commit crimes.[2]

[1] Cf. Nessel in H. Gross's Archiv. IV, 343

[2] Cf. Kraft-Ebing Psychosis Menstrualis. Stuttgart 1902.

Creatures like her undergo similar danger when they have to
make statements about perceptions which are either interesting in
themselves, or have occurred in an interesting way. Here caution
must be exercised in two directions. First: Discover whether the
child in question was passing through her monthly period at the
time when she saw the event under discussion, or when she was
telling about it. In the former case, she has told of more than could
have been perceived; in the second case she develops the delusion
that she had seen more than she really had. How unreliable the
testimony of youthful girls is, and what mistakes it has caused, are
familiar facts, but too little attention is paid to the fact that this
unreliability is not permanent with the individuals, and in most
cases changes into complete trustworthiness. As a rule, the criminal
judge is almost never in a position to determine the inconsistencies
in the testimony of a menstruating girl, inasmuch as he sees her, at
most, just a few times, and can not at those times observe differences
in her love for truth. Fortunately the statements of newly menstruating
girls, when untrue, are very characteristic, and present
themselves in the form of something essentially romantic, extraordinary,
and interesting. If we find this tendency of transforming
simple daily events into extraordinary experiences, then, if the
testimony of the girl does not agree with that of other witnesses,
etc., we are warned. Still greater assurance is easy to gain, by
examining persons who know the girl well on her trustworthiness
and love of truth before this time. If their statements intensify
the suspicion that menses have been an influence, it is not too
much to ask directly, to re-examine, and, if necessary, to call in
medical aid in order to ascertain the truth. The direct question
is in a characteristically great number of cases answered falsely. If
in such cases we learn that the observation was made or the testimony
given at the menstrual period, we may assume it probably
justifiable to suspect great exaggeration, if not pure invention.

The menstrual period tends, at all ages from the youngest child
to the full-grown woman, to modify the quality of perception and
the truth of description. Von Reichenbach[1a] writes that sensitivity
is intensified during the menstrual period, and even if this famous
discoverer has said a number of crazy things on the subject, his
record is such that he must be regarded as a clever man and an
excellent observer. There is no doubt that his sensitive people were
simply very nervous individuals who reacted vigorously to all external


stimulations, and inasmuch as his views agree with others, we may
assume that his observation shows at least how emotional, excitable,
and inclined to fine perceptions menstruating women are. It is well-
known how sharpened sense-perception becomes under certain
conditions of ill-health. Before you get a cold in the head, the
sense of smell is regularly intensified; certain headaches are accompanied
with an intensification of hearing so that we are disturbed
by sounds that otherwise we should not hear at all; every bruised
place on the body is very sensitive to touch. All in all, we must
believe that the senses of woman, especially her skin sensations, the
sensations of touch, are intensified during the menstrual period,
for at that time her body is in a ``state of alarm.'' This fact is
important in many ways. It is not improbable that one menstruating
woman shall have heard, seen, felt, and smelt, things which others,
and she herself, would not have perceived at another time. Again,
if we trace back many a conception of menstruating women we
learn that the boundary between more delicate sensating and sensibility
can not be easily drawn. Here we may see the universal
transition from sensibility to acute excitability which is a source
of many quarrels. The witness, the wounded, or accused are all,
to a considerable degree, under its influence. It is a generally familiar
fact that the incomparably larger number of complaints of attacks on
women's honor, fall through. It would be interesting to know just
how such complaints of menstruating women occur. Of course,
nobody can determine this statistically, but it is a fact that
such trials are best conducted, never exactly four weeks after the
crime, nor four weeks after the accusation. For if most of the complaints
of menstruating women are made at the period of their
menses, they are just as excited four weeks later, and opposed to
every attempt at adjustment. This is the much-verified fundamental
principle! I once succeeded by its use in helping a respectable,
peace-loving citizen of a small town, whose wife made uninterrupted
complaints of inuriam causa, and got the answer that his wife was
an excellent soul, but, ``gets the devil in her during her monthlies,
and tries to find occasions for quarrels with everybody and finds
herself immediately much insulted.''

[1a] Der sensitive Mensch.

A still more suspicious quality than the empty capacity for anger
is pointed out by Lombroso,[1] who says that woman during menstruation
is inclined to anger and to falsification. In this regard
Lombroso may be correct, inasmuch as the lie may be combined


with the other qualities here observed. We often note that most
honorable women lie in the most shameless fashion. If we find
no other motive and we know that the woman periodically gets into
an abnormal condition, we are at least justified in the presupposition
that the two are coordinate, and that the periodic condition is
cause of the otherwise rare feminine lie. Here also, we are required
to be cautious, and if we hear significant and not otherwise confirmed
assertions from women, we must bear in mind that they may be
due to menstruation.

[1] C. Lombroso and G. Ferrero. The Female Offender.

But we may go still further. Du Saulle[1] asserts on the basis
of far-reaching investigations, that a significant number of thefts
in Parisian shops are committed frequently by the most elegant
ladies during their menstrual period, and this in no fewer than
35 cases out of 36, while 10 more cases occurred at the beginning of
the period.

[1] La Folie devant les Tribunaux Paris 1864.
Trait de Medicine Lgale. Paris 1873.

Other authorities[2] who have studied this matter have shown how
the presentation of objects women much desire leads to theft. Grant
that during her mensis the woman is in a more excitable and less
actively resisting condition, and it may follow she might be easily
overpowered by the seductive quality of pretty jewelry and other
knickknacks. This possibility leads us, however, to remoter conclusions.
Women desire more than merely pretty things, and are
less able to resist their desires during their periods. If they are less
able to resist in such things, they are equally less able to resist in
other things. In handling those thefts which were formerly called
kleptomaniac, and which, in spite of the refusal to use this term,
are undeniable, it is customary, if they recur repeatedly, to see
whether pregnancy is not the cause. It is well to consider also the
influence of menstruation.

[2] Les Voleuses des Grands Magazins. Archives d'Anthropologie Criminelle
XVI, 1, 341 (1901).

Menstruation may bring women even to the most terrible crimes.
Various authors cite numerous examples in which otherwise sensible
women have been driven to the most inconceivable things--in
many cases to murder. Certainly such crimes will be much more
numerous if the abnormal tendency is unknown to the friends of
the woman, who should watch her carefully during this short, dangerous
period.

The fact is familiar that the disturbances of menstruation lead
to abnormal psychoses. This type of mental disease develops


so quietly that in numerous cases the maladies are overlooked, and
hence it is more easily possible, since they are transitive, to interpret
them commonly as ``nervous excitement,'' or to pay no attention
to them, although they need it.[1]

[1] A. Schwob: Les Psychoses Menstruelles au Point du Vue Medico-legal. Lyon,
1895.

Section 67. (c) Pregnancy.

We may speak of the conditions and effects of pregnancy very
briefly. The doubt of pregnancy will be much less frequent than
that of menstruation, for the powerful influence of pregnancy on
the psychic life of woman is well-known, and it is hence the more
important to call in the physician in cases of crimes committed by
pregnant women, or in cases of important testimony to be given by
such women. But, indeed, the frequently obvious remarkable
desires, the significant conduct, and the extraordinary, often cruel,
impulses, which influence pregnant women, and for the appearance
of which the physician is to be called in, are not the only thing.
The most difficult and most far-reaching conditions of pregnancy
are the purely psychical ones which manifest themselves in the
sometimes slight, sometimes more obvious alterations in the woman's
point of view and capacity for producing an event. In themselves
they seem of little importance, but they occasion such a change
in the attitude of an individual toward a happening which she
must describe to the judge, that the change may cause a change in
the judgment. I repeat here also, that it may be theoretically said,
``The witness must tell us facts, and only facts,'' but this is not
really so. Quite apart from the fact that the statement of any
perception contains a judgment, it depends also and always on the
point of view, and this varies with the emotional state. If, then, we
have never experienced any of the emotional alteration to which a
pregnant woman is subject, we must be able to interpret it logically
in order to hit on the correct thing. We set aside the altered somatic
conditions of the mother, the disturbance of the conditions of nutrition
and circulation; we need clearly to understand what it means to
have assumed care about a developing creature, to know that a
future life is growing up fortunately or unfortunately, and is capable
of bringing joy or sorrow, weal or woe to its parents. The woman
knows that her condition is an endangerment of her own life, that


it brings at least pains, sufferings, and difficulties (as a rule,
overestimated by the pregnant woman). Involuntarily she feels, whether
she be educated or uneducated, the secrecy, the elusiveness of the
growing life she bears, the life which is to come out into the world, and
to bring its mother's into jeopardy thereby. She feels nearer death,
and the various tendencies which are attached to this feeling are
determined by the nature and the conditions of each particular
future mother's sensations. How different may be the feeling of
a poor abandoned bride who is expecting a child, from that of a
young woman who knows that she is to bring into the world the
eagerly-desired heir of name and fortune. Consider the difference
between the feeling of a sickly proletarian, richly blessed with
children, who knows that the new child is an unwelcome superfluity
whose birth may perhaps rob the other helpless children of their
mother, with the feeling of a comfortable, thoroughly healthy
woman, who finds no difference between having three or having
four children.

And if these feelings are various, must they not be so intense and
so far-reaching as to influence the attitude of the woman toward some
event she has observed? It may be objected that the subjective attitude
of a witness will never influence a judge, who can easily discover
the objective truth in the one-sided observation of an event. But
let us not deceive ourselves, let us take things as they are. Subjective
attitude may become objective falsehood in spite of the best endeavor
of the witness, and the examiner may fail altogether to distinguish
between what is truth and what poetry. Further, in many instances
the witness must be questioned with regard to the impression the
event made on her. Particularly, if the event can not be described
in words.

We must ask whether the witness's impression was that an attack
was dangerous, a threat serious, a blackmail conceivable, a brawl
intentional, a gesture insulting, an assault premeditated. In these,
and thousands of other cases, we must know the point of view, and
are compelled to draw our deductions from it. And finally, who of
us believes himself to be altogether immune to emotional induction?
The witness describes us the event in definite tones which are echoed
to us. If there are other witnesses the incomplete view may be corrected,
but if there is only one witness, or one whom for some reason
we believe more than others, or if there are several, but equally-
trusted witnesses, the condition, view-point, and ``fact,'' remain
inadequate in us. Whoever has before him a pregnant woman with


her impressions altered in a thousand ways, may therefore well be
``up in the air!''[1]

[1] Neumann: Einfluss der Sehwangerschaft. Siebold's Journal f. Geburtshilfe.
Vol. II.
Hoffbauer: Die Gelste der Schwangeren. Archiv f. Kriminalrecht. Vol. I.
1817.

The older literature which develops an elaborate casuistic concerning
cases in which pregnant women exhibited especial desires,
or abnormal changes in their perceptions and expressions, is in
many directions of considerable importance. We must, however,
remember that the old observations are rarely exact and were always
made with less knowledge than we nowadays possess.

Section 68. (d) Erotic.

A question which is as frequent as it is idle, concerns the degree
of sexual impulse in woman. It is important for the lawyer to know
something about this, of course, for many a sexual crime may be
more properly judged if it is known how far the woman encouraged
the man; and in similar cases the knowledge might help us to presume
what attitude feminine witnesses might take toward the matter.
First of all, the needs of individual women are as different as those
of individual men, and as varied as the need for food, drink, warmth,
rest, and a hundred other animal requirements. We shall be unable
to find any standard by determining even an average. It is useless
to say that sexual sensibility is less in woman than in man; because
specialists contradict each other on this matter. We are not aided
either by Sergi's[2] assertion, that the sensibility is less than the
irritability in woman, or by Mantegazza's statement, that women
rarely have such powerful sexual desire that it causes them pain.
We can learn here, also, only by means of the interpretation of good
particular observations. When, for example, the Italian positivists
repeatedly assert that woman is less erotic and more sexual, they
mean that man cares more about the satisfaction of the sexual
impulse, woman about the maternal instinct. This piece of
information may help us to explain some cases; at least we
shall understand many a girl's mistake without needing immediately
to presuppose rape, seduction by means of promises
of marriage, etc. Once we have in mind soberly what fruits
dishonor brings to a girl,--scorn and shame, the difficulties
of pregnancy, alienation from relatives, perhaps even banish-


ment from the paternal home, perhaps the loss of a good position,
then the pains and sorrows of child-birth, care of the child,
reduction of earnings, difficulties and troubles with the child,
difficulties in going about, less prospect of care through wedlock,--
these are of such extraordinary weight, that it is impossible
to adduce so elementary a force to the sexual impulse as to enable
it to veil the outlook upon this outcome of its satisfaction.

[2] Archivio di Psichiatria. 1892. Vol. XIII.

The well-known Viennese gynaecologist, Braun, said, ``If it
were naturally so arranged that in every wedlock man must bear
the second child, there would be no more than three children in
any family.'' His intention is, that even if the woman agrees to
have the third child, the man would be so frightened at the pains
of the first child-birth that he never again would permit himself to
bear another. As we can hardly say that we have any reason for
asserting that the sexual needs of woman are essentially greater, or
that woman is better able to bear more pain than man, we are compelled
to believe that there must be in woman an impulse lacking
in man. This impulse must be supposed to be so powerful that it
subdues, let us say briefly, all the fear of an illegitimate or otherwise
undesirable child-birth, and this is the impulse we mean by sexuality,
by the maternal instinct.

It would seem as if nature, at least in isolated cases, desires to
confirm this view. According to Icard there are women who have
children simply for the pleasure of suckling them, the suckling being
a pleasant sensation. If, now, nature has produced a sexual impulse
purely for the sake of preserving the species, she has given fuller
expression to sexuality and the maternal instinct when she has
endowed it with an especial impulse in at least a few definite cases.
This impulse will explain to the criminalist a large number of phenomena,
especially the accommodation of woman to man's desires;
and from this along he may deduce a number of otherwise difficultly
explainable psychical phenomena.

There is, of course, a series of facts which deny the existence of
this impulse--but they only seem to. Child-murder, the very
frequent cruelty of mothers to their children, the opposition of very
young women to bearing and bringing up children (cf. the educated
among French and American women), and similar phenomena seem
to speak against the maternal instinct. We must not forget, however,
that all impulses come to an end where the opposed impulse becomes
stronger, and that under given circumstances even the most powerful
impulse, that of self-preservation, may be opposed. All actions of


despair, tearing the beard, beating hands and feet together, rage at
one's own health, and finally suicide may ensue. If the mother kills
her own child, this action belongs to the same series as self-damage
through despair. The more orderly and numerous actions and
feelings in this direction, e. g., the disinclination of women toward
bearing children, may be explained also by the fact that it is the
consequence of definite conditions of civilization. If we recall what
unnatural, senseless, and half crazy habits with regard to nutrition,
dressing, social adjustments, etc., civilization and fashion have
forced upon us, we do not need to adduce real perversity in order
to understand how desire for comfort, how laziness and the scramble
for wealth lead to suppression of the maternal instinct. This may
also be called degeneration. There are still other less important
circumstances that seem to speak against the maternal instinct.
These consist primarily in the fact that the sexual impulse endures
to a time when the mother is no longer young enough to bear a
child. We know that the first gray hair in no sense indicates the
last lover, and according to Tait, a period of powerful sex-impulsion
ensues directly after the climacterium. Now of what use, so far
as child-birth is concerned, can such an impulse be?

But because natural instincts endure beyond their period of
purposive efficiency, it does not follow that they are unconnected
with that efficiency; we eat and drink also when the food is superfluous
as nourishment. Wonderfully as nature has adjusted the
instincts and functions to definite purposes, she still has at no point
drawn fixed boundaries and actually destroyed her instrument where
the need for it ceased. Just because nature is elsewhere parsimonious,
she seems frequently extravagant; yet that extravagance
is the cheapest means of attaining the necessary end. Thus, when
woman's passion is no longer required for the function of motherhood,
its impulsion may yet be counted on for the psychological explanation
of more than one criminal event.

What is important, is to count the maternal instinct as a factor
in criminal situations. If we have done so, we find explanations
not only of sexual impropriety, but of the more subtle questions of
the more or less pure relation between husband and wife. What
attitude the woman takes toward her husband and children, what
she demands of them, what she sacrifices for them, what makes it
possible for her to endure an apparently unendurable situation;
what, again, undermines directly and suddenly, in spite of seemingly
small value, her courage in life;--these are all conditions which


appear in countless processes as the distinguishing and explaining
elements, and they are to be understood in the single term, ``maternal
instinct.'' For a long time the inexplicability of love and sexual
impulse were offered as excuses, but these otherwise mighty factors
had to be assigned such remarkable and self-contradictory aspects
that only one confusion was added to another and called explanation.
Now suppose we try to explain them by means of the maternal
instinct.

Section 69. (e) Submerged Sexual Factors.

The criminal psychologist finds difficulties where hidden impulses
are at work without seeming to have any relation to their results.
In such cases the starting-point for explanation is sought in the wrong
direction. I say starting-point, because ``motive'' must be conscious,
and ``ground'' might be misunderstood. We know of countless
criminal cases which we face powerless because we do indeed know
the criminal but are unable to explain the causal connection between
him and the crime, or because, again, we do not know the criminal,
and judge from the facts that we might have gotten a clew if we had
understood the psychological development of the crime. If we seek
for ``grounds,'' we may possibly think of so many of them as never
to approach the right one; if we seek motives, we may be far misled
because we are able only to bring the criminal into connection with
his success, a matter which he must have had in mind from the
beginning. It is ever easy for us when motive and crime are in open
connection: greed, theft; revenge, arson; jealousy, murder; etc.
In these cases the whole business of examination is an example in
arithmetic, possibly difficult, but fundamental. When, however,
from the deed to its last traceable grounds, even to the attitude of
the criminal, a connected series may be discovered and yet no explanation
is forthcoming, then the business of interpretation has
reached its end; we begin to feel about in the dark. If we find
nothing, the situation is comparatively good, but it is exceedingly
bad in the numerous cases in which we believe ourselves to have
sighted and pursued the proper solution.

Such a hidden source or starting-point of very numerous crimes
is sex. That it often works invisibly is due to the sense of shame.
Therefore it is more frequent in women. The hidden sexual starting-
point plays its part in the little insignificant lie of an unimportant
woman witness, as well as in the poisoning of a husband for the
sake of a paramour still to be won. It sails everywhere under a


false flag; nobody permits the passion to show in itself; it must
receive another name, even in the mind of the woman whom it
dominates.

The first of the forms which the sexual impulse takes is false
piety, religiosity. This is something ancient. Friedreich points to
the connection between religious activity and the sexual organization,
and cites many stories about saints, like that of the nun Blanbekin,
of whom it was said, ``eam scire desiderasse cum lacrimis, et
moerore maximo, ubinam esset praeputium Christi.'' The holy
Veronica Juliani, in memory of the lamb of God, took a lamb to
bed with her and nursed it at her breast. Similarly suggestive
things are told of St. Catherine of Genoa, of St. Armela, of St. Elizabeth,
of the Child Jesus, etc. Reinhard says correctly that sweet
memories are frequently nothing more or less than outbursts of
hidden passion and attacks of sensual love. Seume is mistaken in
his assertion that mysticism lies mainly in weakness of the nerves
and colic--it lies a span deeper.

The use of this fact is simple. We must discover whether a woman
is morally pure or sensual, etc. This is important, not only in violations
of morality, but in every violation of law. The answers we
receive to questions on this matter are almost without exception
worthless or untrue, because the object of the question is not open
to view, is difficult to observe, and is kept hidden from even the
nearest. Our purpose is, therefore, best attained by directing the
question to religious activity, religiosity, and similar traits. These
are not only easy to perceive, but are openly exhibited because
of their nature. Whoever assumes piety, does so for the sake of
other people, therefore does not hide it. If religious extravagance
can be reliably confirmed by witnesses, it will rarely be a mistake
to assume inclination to more or less stifled sexual pleasure.

Examples of the relationship are known to every one of us, but
I want to cite two out of my own experience as types. In one of
them the question turned on the fact that a somewhat old, unmarried
woman had appropriated certain rather large trust sums
and had presented them to her servant. At first every suspicion of
the influence of sex was set aside. Only the discovery of the
fact that in her ostentatious piety she had set up an altar in her
house, and compelled her servant to pray at it in her company,
called attention to the deep interest of this very moral maiden in
her servant.

The second case dealt with the poisoning of an old, impotent


husband by his young wife. The latter was not suspected by anybody,
but at her examination drew suspicion to herself by her
unctuous, pious appearance. She was permitted to express herself
at length on religious themes and showed so very great a love of
saints and religious secrets that it was impossible to doubt that
a glowing sensuality must be concealed underneath this religious
ash. Adultery could not be proved, she must have for one reason
or another avoided it, and that her impotent husband was unsatisfactory
was now indubitable. The supposition that she wanted
to get rid of him in order to marry somebody else was now inevitable;
and as this somebody else was looked for and discovered, the adduction
of evidence of her guilt was no longer difficult.

How captious it is to prove direct passion and to attach reasonable
suspicion thereto, and how necessary it is, first of all, to establish
what the concealing material is, is shown in a remark of Kraus,[1] who
asserts that the wife never affects to be passionate with her husband;
her desire is to seduce him and she could not desire that if she were
not passionate. This assertion is only correct in general. It is not,
however, true that woman has no reason for affectation, for there
are enough cases in which some woman, rendered with child by a
poor man, desires to seduce a man of wealth in order to get a wealthy
father for her child. In such and similar cases, the woman could
make use of every trick of seduction without needing to be in the
least passionately disposed.

[1] A. Kraus: Die Psychologie des Verbrechens. Tbingen 1884.

Another important form of submerged sexuality is ennui. Nobody
can say what ennui is, and everybody knows it most accurately.
Nobody would say that it is burdensome, and yet everybody knows,
again, that a large group of evil deeds spring from ennui. It is not
the same as idleness; I may be idle without being bored, and I may
be bored although I am busy. At best, boredom may be called an
attitude which the mind is thrown into because of an unsatisfied
desire for different things. We speak of a tedious region, a tedious
lecture, and tedious company only by way of metonymy--we always
mean the emotional state they put us into. The internal condition
is determinative, for things that are boresome to one may be very
interesting to another. A collection, a library, a lecture, are all
tedious and boresome by transposition of the emotional state to the
objective content, and in this way the ides of boredom gets a wide
scope. We, however, shall speak of boredom as an emotional state.
We find it most frequently among girls, young women, and among


undeveloped or feminine men as a very significant phenomenon.
So found, it is that particular dreamful, happy, or unhappy attitude
expressed in desire for something absent, in quiet reproaches concerning
the lack of the satisfaction of that desire, with the continually
recurring wish for filling out an inner void. The basis of
all this is mainly sex. It can not be proved as such mathematically,
but experience shows that the emotional attitude occurs only in
the presence of sexual energy, that it is lacking when the desires
are satisfied, but that otherwise, even the richest and best substitution
can offer no satisfaction. It is not daring, therefore, to
infer the erotic starting-point. Again we see how the moralizing and
training influence of rigidly-required work suppresses all superfluous
states which themselves make express demands and might want
complete satisfaction.

But everything has its limits, and frequently the gentle, still
power of sweet ennui is stronger than the pressure and compulsion
of work. When this power is present, it never results in good, rarely
in anything indifferent, and frequently forbidden fruit ripens slowly
in its shadow. Nobody will assert that ennui is the cause of illicit
relations, of seduction, of adultery and all the many sins that depend
on it--from petty misappropriations for the sake of the beloved,
to the murder of the unloved husband. But ennui is for the criminal
psychologist a sign that the woman was unsatisfied with what she
had and wanted something else. From wishing to willing, from
willing to asking, is not such a great distance. But if we ask the
repentant sinner when she began to think of her criminal action we
always learn that she suffered from incurable ennui, in which wicked
thoughts came and still more wicked plans were hatched. Any
experienced criminal psychologist will tell you, when you ask him,
whether he has been much subject to mistakes in trying to explain
women's crimes from the starting-point of their ennui. The neighborhood
knows of the periods of this ennui, and the sinner thinks that
they are almost discovered if she is asked about them. Cherchez
la femme, cherchez l'amour; cherchez l'ennui; and hundreds of
times you find the solution.

Conceit, too, may be caused by hidden sexuality. We need only
to use the word denotatively, for when we speak of the conceit of
a scholar, an official, or a soldier, we mean properly the desire for
fame, the activity of getting oneself praised and recognized. Conceit
proper is only womanish or a property of feminine men, and just
as, according to Darwin, the coloration of birds, insects, and even


plants serves only the purposes of sexual selection and has, therefore,
sexual grounds, so also the conceit of woman has only sexual purpose.
She is conceited for men alone even though through the medium
of other women. As Lotze wrote in his ``Mikrokosmus,'' ``Everything
that calls attention to her person without doing her any harm
is instinctively used by women as a means in sexual conflict.'' There
is much truth in the terms ``means'' and ``sexual conflict.'' The
man takes the battle up directly, and if we deal with this subject
without frills we may not deny that animals behave just as men do.
The males battle directly with each other for the sake of the females,
who are compelled to study how to arouse this struggle for their
person, and thus hit upon the use of conceit in sexual conflict. That
women are conceited does not much matter to us criminal psychologists;
we know it and do not need to be told. But the forms in
which their conceit expresses itself are important; its consequences
and its relation to other conditions are important.

To make use of feminine conceit in the court-room is not an art
but an unpermissible trick which might lead too far. Whoever wants
to succeed with women, as Madame de Rieux says, ``must bring
their self-love into play.'' And St. Prospre: ``Women are to be
sought not through their senses--their weakness is in their heart
and conceit.'' These properties are, however, so powerful that they
may easily lead to deception. If the judge does not understand how
to follow this prescription it does no good, but if he does understand
it he has a weapon with which woman may be driven too far, and
then wounded pride, anger, and even suggestion work in far too
vigorous a manner. For example, a woman wants to defend her
lover before the judge. Now, if the latter succeeds by the demonstration
of natural true facts in wounding her conceit, in convincing
her that she is betrayed, harmed, or forgotten by her protected lover,
or if she is merely made to believe this, she goes, in most cases,
farther than she can excuse, and accuses and harms him as much as
possible; tries, if she is able, to destroy him--whether rightly
or wrongly she does not care. She has lost her lover and nobody
else shall have him. ``Feminine conceit,'' says Lombroso, ``explains
itself especially in the fact that the most important thing in
the life of woman is the struggle for men.'' This assertion is strengthened
by a long series of examples and historical considerations and
can serve as a guiding thread in many labyrinthine cases. First of
all, it is important to know in many trials whether a woman has
already taken up this struggle for men, i. e., whether she has a lover,


or wishes to have a lover. If it can be shown that she has suddenly
become conceited, or her conceit has been really intensified, the
question has an unconditionally affirmative answer. Frequently
enough one may succeed even in determining the particular man, by
ascertaining with certainty the time at which this conceit first began,
and whether it had closer or more distant reference to some man.
If these conditions, once discovered, are otherwise at all confirmed,
and there are no mistakes in observation, the inference is inevitably
certain.

We learn much concerning feminine conceit when we ask how a
man could have altered the inclination of a woman whose equal he
in no sense was. It is not necessary in such cases to fuss about the
insoluble riddle of the female heart and about the ever-dark secrets
of the feminine soul. Vulpes vult fraudem, lupus agnum, femina
laudem--this illuminates every profundity. The man in question
knew how to make use of laudem--he knew how to excite feminine
conceit, and so vanquished others who were worth much more than
he.

This goes so far that by knowing the degree of feminine conceit
we know also the vivacity of feminine sexuality, and the latter is
criminologically important. Heinroth[1] says, ``The feminine individual,
so long as it has demands to make, or believes itself to
have them, has utmost self-confidence. Conceit is the sexual
characteristic.'' And we may add, ``and the standard of sexuality.''
As soon as the child has the first ribbon woven into its hair, sexuality
has been excited. It increases with the love of tinsel and glitter
and dies when the aging female begins to neglect herself and to go
about unwashed. Woman lies when she asserts that everything is
dead in her heart, and sits before you neatly and decoratively dressed;
she lies when she says that she still loves her husband, and at the
same time shows considerable carelessness about her body and
clothes; she lies when she assures you that she has always been the
same and her conceit has come or gone. These statements constitute
unexceptionable rules. The use of them involves no possible error.

[1] Lehrbuch des Anthropologie. Leipzig 1822.

We have now the opportunity to understand what feminine
knowledge is worth and in what degree it is reliable. This is no
place to discuss the capacity of the feminine brain, and to venture
into the dangerous field which Schopenhauer and his disciples and
modern anthropologists have entered merely to quarrel in. The
judge's business is the concrete case in which he must test the ex-


pressions of a woman when they depend upon real or apparent
knowledge, either just as he must test the testimony of any other
witness, or by means of experts. We shall therefore indicate only
the symptomatic value of feminine knowledge with regard to feminine
conceit. According to Lotze, women go to theater and to church
only to show their clothes and to appear artistic and pious; while
M. d'Arconville says, that women learn only that it may be said of
them, ``They are scholars,'' but for knowledge they care not at all.

This is important because we are likely, with regard to knowledge
in the deepest sense of the word, to be frequently unjust to women.
We are accustomed to suppose that the accumulation of some form
of knowledge must have some definite, hence causally related, connection
with purpose. We ask why the scholar is interested in his
subject, why he has sought this knowledge? And in most cases we
find the right reason when we have found the logical connection
and have sought it logically. This might have explained difficult
cases, but not where the knowledge of women is concerned. Women
are interested in art, literature, and science, mainly out of conceit,
but they care also for hundreds of other little things in order, by the
knowledge of them, to show off as scholars. Conceit and curiosity
are closely related. Women therefore often attain information that
might cause them to be listed as suspects if it could not be harmlessly
explained by conceit. Conceit, however, has itself to be explained
by the struggle for men, because woman knows instinctively that
she can use knowledge in this struggle. And this struggle for the
other sex frequently betrays woman's own crime, or the crime of
others. Somebody said that Eve's first thought after eating the
apple was: ``How does my fig-leaf fit?'' It is a tasteful notion,
that Eve, who needed only to please her Adam, thought only of
this after all the sorrow of the first sin! But it is true, and we may
imagine Eve's state of mind to be as follows: ``Shall I now please
him more or less?'' It is characteristic that the question about
dress is said to have been the _*first_ question. It shows the power of
conceit, the swiftness with which it presses to the front. Indeed,
of all crimes against property half would have remained undiscovered
if the criminals had been self-controlled enough to keep
their unjustly acquired gains dark for a while. That they have not,
constitutes the hope of every judge for the discovery of the criminal,
and the hope is greater with the extent of the theft. It may be assumed
that the criminal exhibits the fruits of his crime, but that it
is difficult to discover when there is not much of it. This general


rule is much more efficacious among women than among men, for
which reason a criminalist who suspects some person thinks rather of
arresting this person's wife or mistress than himself. When the
apprentice steals something from his master, his girl gets a new shawl,
and that is not kept in the chest but immediately decorates the
shoulders of the girl. Indeed, women of the profoundest culture can
not wait a moment to decorate themselves with their new gauds,
and we hear that gypsies, who have been caught in some fresh
crime, are betrayed mainly by the fact that the women who had
watched the house to be robbed had been trying on bits of clothing
while the men were still inside cleaning the place up. What was most
important for the women was to meet the men already decorated
anew when the men would finally come back.

The old maid is, from the sexual standpoint, legally important
because she is in herself rather different from other women, and
hence must be differently understood. The properties assigned to
these very pitiful creatures are well-known. Many of the almost
exclusively unpleasant peculiarities assigned to them they may be
said really to possess. The old maid has failed in her natural function
and thus exhibits all that is implied in this accident; bitterness,
envy, unpleasantness, hard judgment of others' qualities and deeds,
difficulty in forming new relationships, exaggerated fear and prudery,
the latter mainly as simulation of innocence. It is a well-known fact
that every experienced judge may confirm that old maids (we mean
here, always, childless, unmarried women of considerable age--
not maids in the anatomical sense) as witnesses, always bring something
new. If you have heard ten mutually-corroborating statements
and the eleventh is made by an old maid, it will be different.
The latter, according to her nature, has observed differently, introduces
a collection of doubts and suggestions, introduces nasty
implications into harmless things, and if possible, connects her own
self with the matter. This is as significant as explicable. The poor
creature has not gotten much good out of life, has never had a male
protector, was frequently enough defenseless against scorn and
teasing, the amenities of social life and friendship were rarely her
portion. It is, therefore, almost inevitable that she should see evil
everywhere. If she has observed some quarrel from her window
she will testify that the thing was provoked in order to disturb her;
if a coachman has run over a child, she suggests that he had been
driving at her in order to frighten her; the thief who broke into her
neighbor's house really wanted to break into hers because she is


without protection and therefore open to all attacks, so that it is
conceivable that he should want to hurt her. As a rule there will
be other witnesses, or the old maid will be so energetic in her testimonies
that her ``perceptions'' will not do much damage, but it is
always wise to be cautious.

Of course, there are exceptions, and it is well-known that exceptions
occur by way of extreme contrast. If an old maid does not possess
the unpleasant characteristics of her breed, she is extraordinarily
kind and lovable, in such a way generally, that her all too mild and
rather blind conceptions of an event make her a dangerous witness.
It is also true that old maids frequently are better educated and more
civilized than other women, as De Quincey shows. They are so
because, without the care of husband and children, they have time
for all kinds of excellences, especially when they are inclined thereto.
It is notable that the founders of women's charitable societies are
generally old maids or childless widows, who have not had the joys
and tasks of motherhood. We must take care, therefore, in judging
the kindness of a woman, against being blinded by her philanthropic
activity. That may be kindness, but as a rule it may have its source
in the lack of occupation, and in striving for some form of motherhood.
In judging old maids we deceive ourselves still more easily
because, as Darwin keenly noted, they always have some masculine
quality in their external appearance as well as in their activity and
feeling. Now that kind of woman is generally strange to us. We
start wrong when we judge her by customary standards and miss
the point when, in the cases of such old maids, we presuppose only
feminine qualities and overlook the very virile additions. We may
add to these qualities the intrinsic productivity of old maids. Benneke,
in his ``Pragmatische Psychologie,'' compares the activity of
a very busy housewife with that of an unmarried virgin, and thinks
the worth of the former to be higher, while the latter accomplishes
more by way of ``erotic fancies, intrigues, inheritances, winnings
in the lottery, and hypochondriac complaints.'' This is very instructive
from the criminological point of view. For the criminalist
can not be too cautious when he has an old maid to examine. Therefore,
when a case occurs containing characteristic intrigues, fanciful
inheritances, and winnings in the lottery, it will be well to seek
out the old maid behind these things. She may considerably help
the explanation.

Both professional and popular judgment agree that the largest
majority of women have great fear of becoming old maids. We are


told how this fear expresses itself in foreign countries. In Spain
e. g., it is said that a Spanish woman who has passed her first bloom
takes the first available candidate for her hand in order to avoid
old-maidenhood; and in Russia every mature girl who is able to do
so, goes abroad for a couple of years in order to return as ``widow.''
Everybody knows the event, nobody asks for particulars about it.
Some such process is universal, and many an unfortunate marriage
and allied crime may be explained by it. Girls who at seventeen or
eighteen were very particular and had a right to be, are modest at
twenty, and at twenty-six marry at any price, in order not to remain
old maids. That this is not love-marriage and is often contrary to
intelligence, is clear, and when neither heart nor head rule, the devil
laughs, and it is out of such marriages that adultery, the flight of
the wife, cruelty, robbery from the spouse, and worse things, arise.
Therefore it will be worth while to study the history of the marriage
in question. Was it a marriage in the name of God, i. e., the marriage
of an old maid? Then double caution must be used in the study of
the case.

There is some advantage in knowing the popular conception of
_*when_ a girl becomes an old maid, for old-maidenhood is a matter
of a point of view; it depends on the opinion of other people. Belles-
lettres deals considerably with this question, for it can itself determine
the popular attitude to the unmarried state. So Brandes
discovers that the heroines of classical novelists, of Racine, Shakespeare,
Moliere, Voltaire, Ariosto, Byron, Lesage, Scott, are almost
always sixteen years of age. In modern times, women in novels
have their great love-adventure in the thirties. How this advance
in years took place we need not bother to find out, but
that it has occurred, we must keep in mind.

Before concluding the chapter on sexual conditions, we must
say a word about hysteria, which so very frequently has deceived
the judge. Hysteria was named by the ancients, as is known, from
, the womb,--and properly--for most of the causes
of evil are there hidden. The hysterics are legally significant in
various ways. Their fixed ideas often cause elaborate unreasonable
explanations; they want to attract attention, they are always concerned
with themselves, are always wildly enthusiastic about somebody
else; often they persecute others with unwarranted hatred
and they are the source of the coarsest denunciations, particularly
with regard to sexual crimes. Incidentally, most of them are smart
and have a diseased acuity of the senses. Hearing and smell in


particular, are sometimes remarkably alert, although not always
reliable, for hysterics frequently discover more than is there. On
the other hand, they often are useful because of their delicate senses,
and it is never necessary to show the correctness of their perception
out of hand. Bianchi rightly calls attention to the fact, that hysterics
like to write anonymous letters. Writers of these are generally
women, and mainly hysterical women; if a man writes them, he is
indubitably feminine in nature.

Most difficulties with hysterics occur when they suffer some
damage,[1] for they not only add a number of dishonest phenomena,
but also actually feel them. I might recall by way of example
Domrich's story, that hysterics regularly get cramps laughing,
when their feet get cold. If this is true it is easy to conceive what
else may happen.

[1] Cf. H. Gross's Archiv. VI, 334.

All this, clearly, is a matter for the court physician, who alone
should be the proper authority when a hysteric is before the court.
We lawyers have only to know what significant dangers hysterics
threaten, and further, that the physician is to be called whenever
one of them is before us. Unfortunately there are no specific symptoms
of hysteria which the layman can make use of. We must be
satisfied with the little that has just been mentioned. Hysteria,
I had almost said _*fortunately_, is nowadays so widespread that everybody
has some approximate knowledge of how it affects its victims.

(4) _Particular Feminine Qualities_.

Section 70. (a) Intelligence.

Feminine intelligence properly deserves a separate section. Intelligence
is a function that has in both sexes some basis and purpose
and proceeds according to the same rules, but the meaning of intelligence
must be abandoned if we are to suppose it so rigid and so
difficult to hold, that the age-long differences between man and
woman could have had no influence on it. The fundamentally
distinct bodies, the very different occupations of both sexes, their
different destinies, must have had profound mutative influence on
their intelligence. Moreover, we must always start with a difference
of attitude in the two sexes, in which the purely positive belongs
to one only, and we must see whether it is not intensified by the
negative of the other. When one body presses on another the resulting
impression is due, not only to the hardness of the first, but


also to the softness of the second, and when we hear about the extraordinary
wit of a woman we must blame the considerable idiocy of
the men she associates with. How many women are to be trusted for
intelligence, is a question of great importance for the criminalist,
inasmuch as right judgment depends on the attitude and good
sense of the witnesses, and must determine the value of the material
presented us.

We wish to make no detailed sub-divisions in what follows. We
shall merely consider in their general aspects those functions which
we are accustomed to find in our own work.

Section 71. I. Conception.

Concerning feminine sense-perception we have already spoken.
There is no significant difference between the two sexes, although
in conceptual power we find differences very distinct.

It may be generally said, as the daily life shows, that women
conceive differently from men. Whatever a dozen men may agree
on conceptually, will be differently thought of by any one woman.
Now what is significant in this fact is, that generally the woman is
correct, that she has a better conception,--and still under the
same circumstances we continue to conceive in the same way, even
for the tenth time. This fact demonstrates that a different form of
organization, i. e., an essential difference in nature, determines the
character of conception in the two sexes. If we compare values,
the result will be different according to sex, even with regard to
the very material compared, or to the manner in which it has been
discovered. In the apprehension of situations, the perception of
attitudes, the judgment of people in certain relations, in all that is
called tact, i. e., in all that involves some abstraction or clarification

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